Statutory nuisance

Citation

Waterson, G. and Lee, R. (1999), "Statutory nuisance", Property Management, Vol. 17 No. 3. https://doi.org/10.1108/pm.1999.11317cab.012

Statutory nuisance

Budd v. Colchester Borough Council

In some, perhaps the majority, of cases it would seem that for an abatement notice to be valid it should state with some precision the actions which the local authority requires to be undertaken to abate the nuisance in question. However, as the Court of Appeal held in this case, that is not a universal requirement, and in some cases may not be necessary at all.

In this case the appellant kept a number of greyhounds which by their barking caused a nuisance to his neighbours. The local authority served an abatement notice under s. 80 (1) of the Environmental Protection Act 1990 which identified the nuisance as "dog barking" and simply required him to abate the nuisance within 21 days. In upholding the validity of the abatement notice Swinton-Thomas, LJ explained the reasoning of the court as follows:

Section 80 (1) of the 1990 Act provided the local authority with a choice. The local authority was required to serve a notice "imposing all of any of the following requirements", namely "requiring the abatement of the nuisance" or "requiring other steps as may be necessary".

Depending on the circumstances, it was open to the local authority to take one or other course when serving the notice.

It was not difficult to envisage facts where it would be wholly unreasonable for a local authority to serve a notice merely requiring the recipient to abate the nuisance without stating the works or steps which the local authority required to be taken for that purpose, or where it was clear on the fact of the notice that the notice itself required such works or steps to be taken.

Kirklees Metropolitan Borough Council v. Field (1997) 96 LGR 151 was such a case. A rock face and a wall were in imminent danger of collapse on to some cottages and the notice merely required the owners of the rock face and wall "to abate the statutory nuisance".

It was clear from the notice itself that the only way the nuisance could be abated was by carrying out very extensive works of shoring up the wall and securing the rock fact.

In those circumstances, Mr Justice Owen stated that the notice plainly required the execution of works and, accordingly, the works had to be stated in the notice.

In the ordinary way [however] a local authority was entitled under section 80 (1) to serve a notice simply requiring the recipient to abate the nuisance. It was a wholly appropriate course for the council to take in this case.

The barking of the greyhounds was a nuisance by noise to Mr Budd's neighbours. There were many ways in which he might abate the nuisance.

The most extreme would be to get rid of all six greyhounds, but that might well be an unreasonable requirement. A reduction in the number of dogs might abate the nuisance. Insulation of part of the house might be sufficient.

It might be possible to send the dogs to an animal training centre to cure the problem. However, it might well not be reasonable for the local authority to require Mr Budd to take that course, because he might not be able to afford to do so.

It was quite sufficient for the local authority to require Mr Budd himself to abate the nuisance in a manner which was the least inconvenient or expensive and the most acceptable to him.

Nor was it necessary for the local authority to state the level of barking which constituted the nuisance, or the level of barking which would be acceptable. Indeed, it would be impracticable for the local authority to do so.

The local authority was entitled to serve a notice requiring Mr Budd to abate the nuisance which involved reducing the level of barking so that it ceased to be a nuisance by noise.

As regards the validity of an abatement notice where the necessary steps to abate the nuisance had been completed by the date of the appeal hearing, whether before the magistrates or the Crown Court, the fact that the nuisance no longer existed should not affect the outcome of such an appeal, since the court on appeal had to consider the facts which had existed at the date of service of the notice: SFI Group (formerly Surrey Free Inns plc v. Gosport Borough Council; R v. Knightsbridge Crown Court ex p Cataldi (1999) The Times 5 April 1999. As a matter of interest, in the first case, SFI had contended also that the notice was invalid because it required them to "cease the playing of amplified music at levels which cause a nuisance at neighbouring premises", again without specifying the particular works or steps which were to be effected in order to achieve this no doubt desirable result, and again this was an argument which was rejected by the court.

In Haringey London Borough Counsel v. Jowett (1999) The Times 20 May 1999, the court declined to hold the local authority landlord liable to abate the nuisance allegedly caused to its tenant by traffic noise from the street.

Finally, in R v. Falmouth and Truro Port Health Authority, ex p. South West Water Ltd (1999) The Times 6 May 1999 Harrison J held that the provision of s.'259 of the Public Health Act 1936 which refers (inter alia) to a statutory nuisance arising in respect of the state of "any pond, pool, ditch, gutter or watercourse" did not apply to an alleged statutory nuisance arising in a river or estuary, in this case by reason of the discharge of sewage into the estuary. The abatement notice which had been served in this case was therefore invalid. Were it not for the fact that the Lord Chancellor would appear to have banished the use of old Norman French and Latin from the language of the law, one might have been tempted to ask whether this decision better illustrates the application of the "eiusdem generis rule" or the "Noscitur a sociis rule" to the construction of the statute. But since he has, perhaps we'd better not!